Supreme Court Voids Flag Law; Stage Set for Amendment Battle

By LINDA GREENHOUSE, Special to The New York Times

Published: June 12, 1990

WASHINGTON, June 11—
The Supreme Court declared today that the new Federal law making it a crime to burn or deface the American flag violates the free-speech guarantee of the First Amendment, setting the stage for a political showdown in Congress on the emotional issue of the flag.

The 5-to-4 decision led immediately to renewed calls in Congress for a constitutional amendment to make it possible to prosecute flag burning. President Bush, who endorsed such an amendment last year, said today that he would ''absolutely'' renew his support, saying it was ''in the best interest of this country.''

Such an amendment would be the first time the Bill of Rights, the first 10 amendments to the Constitution, had ever been amended.

It appears inevitable that the political debate that erupted a year ago, when the Court struck down a Texas flag-burning law by the same vote and with the same constitutional analysis, will resume with fury in the months leading up to the fall elections.

Dole Urges an Amendment

Bob Dole of Kansas, the Senate minority leader, and other lawmakers reacted strongly in support of a constitutional amendment. ''There are no options left,'' Senator Dole said. ''It's either do nothing or have a constitutional amendment. I think we ought to do something.''

Mr. Dole urged a vote on the flag issue as early as Thursday, which is Flag Day, but George J. Mitchell of Maine, the Senate majority leader, declined to set a date. [Page B6.] Justice William J. Brennan Jr. wrote the majority opinion today, as he did in Texas v. Johnson last June. He said that despite some differences, the Federal Flag Protection Act of 1989 ''suffers from the same fundamental flaw'' as the Texas law, that of ''suppressing expression,'' and added, ''Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.'' [Texts of the majority and dissenting opinions are on page B6.] Same Split as Last Year's Justice Brennan was joined by Justices Thurgood Marshall, Harry A. Blackmun, Antonin Scalia and Anthony M. Kennedy. Justice John Paul Stevens filed a dissenting opinion that was joined by Chief Justice William H. Rehnquist and by Justices Byron R. White and Sandra Day O'Connor. The vote, cutting across the Court's usual ideological divisions, was the same as in the Texas case.

The decision in two combined cases, U.S. v. Eichman, No. 89-1433, and U.S. v. Haggerty, No. 89-1434, upheld rulings in Federal district courts here and in Seattle earlier this year. Federal District Judge June L. Green in the District of Columbia and Federal District Judge Barbara J. Rothstein in Seattle dismissed prosecutions of protesters who burned American flags, ruling that the new Federal law was unconstitutional under the principles the Court had declared in the Texas case.

The Federal law was enacted last year in the aftermath of the Texas ruling. Its sponsors hoped to deflect the momentum for a constitutional amendment by providing a statutory means of protecting the flag.

Reference to Motive Omitted

The Texas law referred to the offensive message conveyed by desecration of the flag. The sponsors of the Federal law said they hoped to overcome the Court's objections by outlawing the physical mutilation of the flag while omitting any reference to the flag-burner's message or motive.

The Flag Protection Act says, ''Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.''

But the effort to differentiate the Federal law from the Texas statute failed. Justice Brennan said that while the Federal law ''contains no explicit content-based limitation on the scope of prohibited conduct,'' its structure and logic made clear that the Government's interest lay not in the flag's physical protection but in its symbolic meaning and ''in the communicative impact of flag destruction.''

Justice Brennan noted that the law ''does not prohibit flying a flag in a storm or other conduct that threatens the physical integrity of the flag.'' The statute's use of such words as ''defile'' and ''trample,'' he said, ''unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value.''

Controversy Played Down

Justice Brennan's brief opinion, barely eight pages long, was written in a straightforward style that made only oblique reference to the political controversy swirling around the Court. One such reference was to the Bush Administration's argument, in its brief, that the Court's analysis should ''take into account that national consensus underlying the Flag Protection Act.''

Justice Brennan said, ''Even assuming such a consensus exists, any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.''

Justice Stevens's dissenting opinion had a solemn, reserved tone. He said that the case came down to ''a question of judgment'' on which ''reasonable judges may differ.''

His opinion spoke for all four dissenting Justices. This was in contrast to the Texas case, in which Chief Justice Rehnquist filed a biting dissent, quoting ''The Star-Spangled Banner'' and accusing Justice Brennan of delivering ''a regrettably patronizing civics lecture.'' Justice Stevens had not signed that opinion, filing a dissenting opinion of his own instead.

Today, the dissenters said that those who burn the flag may be expressing a variety of messages, and that the Government has a legitimate and independent interest in preserving the flag's symbolic value ''regardless of which of many different ideas may have motivated a particular act of flag burning.''

There was an angry passage in the dissenting opinion, directed not at the Justices in the majority but at unnamed ''leaders'' who, Justice Stevens said, ''seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends.''

He maintained that ''the integrity of the symbol has been compromised by those leaders who seem to advocate compulsory worship of the flag even by individuals whom it offends.''